COURT OF APPEAL FOR ONTARIO

DATE: 20000502

DOCKET: C31032

RE: YVONNE MONTAGUE, ASQUITTE MONTAGUE, ANDREA
MONTAGUE, YVETTE MONTAGUE, BRUCE MONTAGUE, JARVON
SCHURTON, by his Litigation Guardian, ANDREA
MONTAGUE and TIANA SCHURTON, by her Litigation
Guardian, ANDREA MONTAGUE (Plaintiffs/Respondents)
and BANK OF NOVA SCOTIA (Defendant/Appellant)

BEFORE: MORDEN, DOHERTY AND LASKIN JJ. A.

COUNSEL: Elizabeth M. Stewart
For the defendant/appellant

Yvonne Montague, in person
For the plaintiffs/respondents

HEARD: April 26, 2000

On appeal from the judgment of Benotto J. dated November 2, 1998.

E N D O R S E M E N T

[1] The defendant in this occupier’s liability case appeals from the jury’s findings of liability and damages and the plaintiff Yvonne Montague cross-appeals the jury’s award of damages and the trial judge’s failure to award pre-judgment interest, and costs. She also sought re-instatement as an employee with the defendant. We advised her during the hearing that the court does not have jurisdiction to deal with the last-mentioned claim.

[2] The defendant’s appeal is not based upon any errors of the trial judge in the conduct of the trial or in her charge to the jury but solely on the ground that the jury’s findings and awards were unreasonable.

[3] We are satisfied that there was evidence on which the jury could reasonably find want of due care on the part of the defendant which caused the plaintiff’s accident of February 18, 1991. The defendant did not move for a non-suit at the conclusion of the plaintiff’s case. From this, it may be inferred that its counsel was of the view that there was a case to be met. In any event, following the verdict the defendant moved before the trial judge to have the action dismissed notwithstanding the verdict. The trial judge held that there was some evidence of negligence on the defendant’s part – the evidence that the plaintiff fell as a result of water on the floor and an absence of mats in the area of the fall. We note that, also, there was evidence of no signs in the area. We cannot say that the jury was unreasonable in acting on this evidence and in not giving effect to the defendant’s evidence, which did not directly address the state of the premises for some time before and at the time of the fall.

[4] Further, we agree with the trial judge’s reliance on the evidence of Dr. Richards as supportive of the finding of general damages of $75,000.00. No doubt this amount is high but, having regard to the high degree of deference that must be shown to the assessment of damages by a jury, we do not think we are justified in interfering with it.. Further, accepting that the jury found that the plaintiff had used reasonable care for her own safety, this amount should not be reduced by any degree of fault on the plaintiff’s part. The jury’s finding in this regard was clearly wrong.

[5] We are satisfied that the plaintiff gave no evidence which could support a quantifiable award for loss of income and no evidence relating to any other kind of special damages. Accordingly the award of $80,000.00 for special damages cannot stand.

[6] No evidence was given by the plaintiff’s husband which could justify the Family Law Act award of $35,000. His only loss was the loss of income from his wife and this is not a compensable item under s.61 of the Family Law Act. The most that could be justified under this heading would be $5,000.00.

[7] The only matter of merit respecting the cross-claim is the failure of the trial judge to award pre-judgment interest to the plaintiff. This should be awarded in accordance with the applicable provisions of the Courts of Justice Act.

[8] In the result, the appeal is allowed but only to the extent of deleting the award for special damages and reducing the Family Law Act award to $5,000.00. The cross-appeal is allowed but only to the extent of deleting the reduction of 20% in the plaintiff’s damages and of awarding to the plaintiff pre- judgment interest as stated.

[9] We award no costs of the appeal or the cross-appeal.

“J.W. Morden J.A.”

“Doherty J.A.”

“J.I. Laskin J.A.”